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The Courts of Law
Summary of chapter. This chapter describes Ireland's legal system as it had evolved in Ireland since the Middle Ages. Like many other venerable and hoary institutions it badly needed a systematic reform, but this did not occur until the end of the century.
(ii) The Royal Courts in Dublin
(iii) The
Ecclesiastical and Admiralty
Courts
(iv)
County Courts: Courts
of Commission and Assize
(v) County Courts: Mayor’s and Sheriff's Courts
(viii) Personnel
of the Courts
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Since the reign of James I, by
statutes of the years 1605, 1606 and 1609, the Common Law of England became the
only law in the courts of
The Common Law of England was based
on the decisions of the king's judges in the royal courts in
Judges, especially those in the
equity courts of Chancery and Exchequer, were allowed considerable latitude in
interpreting the law, and fitting it to changed circumstances, and so it never
became archaic or fossilised.
Though judges in the Irish courts
followed Common Law in the first sense, with regard to statute law (until 1800)
they considered themselves bound only by statutes of the Irish Parliament.
Despite claims made by the British Parliament to pass laws for
(ii) The Royal Courts in
There were four major courts in
Originally, the Chancellor's office,
the Chancery had a secretarial function, with two sub-offices, the Rolls and
the Hanaper. (The Hanaper Office has been described under 'Government'.) The
Lord Chancellor was also called on to adjudicate in cases where the law did not
apply, which he did sitting in the Court of Chancery. In
Despite the satirical image painted
of it by Charles Dickens Chancery was an important court. It did not deal with,
and refused to deal with, cases for which there was a
remedy in Common Law. It dealt
particularly with matters of property for which there was no clear title, the
affairs of lunatics and minors, and the guardianship of orphans. From the Chancellorship of Lord Lifford
1768-90 the verdicts of the Irish Lord Chancellors were recorded.
Most of the routine work in this
Court was carried out by barristers specialising in equity cases, who were
called Masters in Chancery. In the early years of the century these
masterships, like commissions in the army, were purchased from retiring
Masters.
The senior Master traditionally had
custody of the record rolls of the court, and was given the title of Master of
the Rolls. He held a subordinate court of his own, the
The Court of the King's Bench was
the highest Common Law court in
The Court had its civil, or Nisi prius side. The commission judges at
the assizes in fact tried most Nisi prius
cases. If such a case was not tried the plaintiff could obtain a writ from the
Lord Chief Justice calling on the plaintiff and defendant to appear before him
unless first [nisi prius] the case
had been tried elsewhere. Bringing a case before a court in
The Court of Common Pleas was
originally established to judge cases between subjects that did not involve the
crown. It was demanded in the Magna Charta that a place be fixed in which
judgements could be given rather than having the plaintiff follow the court
about.
The Court of Exchequer was the most
ancient of the four courts, and the one that most retained its medieval
character. It was originally a board of officials charged with examining all
sources of the king's revenue and judicially deciding what was owed to the
king. It was named after a chequered table on which the money was counted, the
chequer being a form of abacus. The judges in this court were still called
barons, because that was what those charged with investigating the sources of
the royal finances were called. (The Chancellor of the Exchequer originally
belonged to this court, and indeed long retained the right to be heard in it
when it sat as an equity court.) It had its Common Law, equity, and financial
sides, but had no criminal jurisdiction. In theory it was confined to financial
matters, but by a legal fiction that the plaintiff could not pay his debts to
the king it extended its jurisdiction to other matters. Its administrative side
was concerned with collecting arrears of taxation, and this formed a large part
of its work. From the 1830's onwards, by
a political decision, the Court of Exchequer refused to hear tithe cases if a
remedy could be found in the Common Law courts. It considered bringing such
cases to
The Court, until 1803, was the only
one that could issue writs sub poena
summoning persons to appear before it under threat of a penalty for contempt.
In that year the power was extended to other courts. The writs were directed to
the sheriff of the county, who normally did not employ a bailiff, leaving the
plaintiff to employ his own process-server (DEP
16 April 1825). It also had a curious power dating back to the Middle Ages of issuing 'Commissions of Rebellion'. These
commissions gave a power similar to that of the sheriff of swearing in a posse
of special deputies. A writ could be issued to a plaintiff enabling him to call
on all the king's liege subjects to carry out the orders of the court. Whatever
value this might have had in the days of Robin Hood it was clearly out of date
in the nineteenth century. Most people regarded the power as obsolete, but as
noted earlier no theory of obsolescence was accepted in the courts.
During the widespread refusal to pay
tithes in the 1830’s some gentlemen decided to use this archaic power to force
the payment. They hoped to be able to use the new police to assist them, but
the Government resolutely refused to allow the police to act other than under
the direction of their own officers, and also refused to allow the police to
become involved in civil disputes. The Protestant gentlemen obtained
Commissions of Rebellion from the Court of Exchequer and then called on the
senior police officer in the locality to assist in collecting the tithes. This
led to a clash between the Government and the Court of Exchequer with regard to
the limits of their respective authorities.
The Court of Exchequer backed down pragmatically by refusing to hear
tithe cases which were merely vexatious. The Government in 1836, when re-organising
the police, made clearer the principle that they acted only under their own
officers.
Though there could not be an appeal
from a verdict of a jury there could be appeals made on points of law. The
appeal court in
Prior to 1782 appeals from the Irish
Court of King's Bench were made to the English Court of King's Bench by writ of
error, or to the British House of Lords by appeal, but
for political reasons the appeals were transferred to the Irish House of Lords.
With the Act of Union appeals from the Irish courts were transferred to the
House of Lords in
In the eighteenth century a new
building was erected to house the Four Courts, being completed in 1800. It also
housed the offices of the courts of Chancery, King's Bench, Rolls, and
Exchequer Courts, and the offices of the Clerk of Hanaper and the Chief
Remembrancer.
The system of courts was rationalised
in 1877 following a re-organisation of the English courts. The four principal
courts, along with minor courts like that of the Admiralty, were fused into a
single 'Supreme Court of Judicature' with Common Law and Equity jurisdiction.
It had two sides, a High Court of Justice with original jurisdiction, and a
Court of Appeal. The High Court, in five divisions, heard cases that had
formerly been brought before the four courts. The Court of Appeal heard appeals
both from the assizes and from the divisions of the High Court. The House of
Lords remained the ultimate court of appeal (
(iii) The Ecclesiastical and Admiralty Courts
Besides dealing with the affairs of
the Established Church the ecclesiastical courts had quite an extensive civil
jurisdiction up to 1857 chiefly with regard to divorce proceedings and the
probate of wills. The Oxford English
Dictionary under 'probate' notes that the manorial court in the Lordship of
Newry dealt with marriages licences and the probate of wills under the seal of
the religious house [Cistercian] to which it had formerly belonged. The
peculiarity of these courts was that in them Roman, not Common Law was applied.
All member of these courts, and the barristers, or proctors as they were
called, who practised in them had to possess a degree in Civil and Canon Law
from a university.
The
The
(iv) County Courts: Courts of Commission and Assize
Indictable offences, those that had
to be laid before a Grand Jury, could be tried only in the king's courts.
Medieval courts like palatine courts, or those of the '
If it were felt necessary, in
The twelve commissioned judges were
sent out on six circuits. These were the Home, the North East, the
On circuit the judges had some
administrative functions besides the judicial ones. They had to address the
Grand Jury, calling their attention if necessary to some aspect of
administration or of the execution of justice. This was called the charge to
the Grand Jury. They had to approve the presentments for the year before a rate
could be set. They had to receive the nominations of sheriffs for the following
year. In his charges to trial juries the judge stated the law on the issue, and
the jury had to accept his ruling on the point of law. They then decided the
point of fact, whether the law so interpreted was broken. Appeals therefore
were invariably against the rulings of the judges. Occasionally a test case
could be brought to determine a point of law. The side favoured by the ruling
of the judge won even if the jury acquitted the accused on point of fact.
[Top]
(v) County Courts: Mayor's and Sheriff's Courts
The rise of the assize or commission
courts meant that the courts of the mayors and sheriffs declined in importance.
Sessions in the sheriff's court in the counties were held in the quarters of
the year when there was no assizes, and were called Quarter Sessions. These
courts were in the nineteenth century record courts, because records or rolls
of their proceedings had to be kept.
Record courts were courts of the sovereign, and had powers to fine or
imprison. Some towns and cities also had record courts presided over by minor
judges called recorders who had legal powers corresponding to those given to
Assistant Barristers in the county courts. (The sheriff's or county court, when
made a court of record became a king's court.) The magistrates of the county
attended and they were assisted by the Assistant Barrister, who chaired their
meetings. Grand and petty juries were empanelled and indictable offences (those
that had to be indicted before a Grand Jury) were tried, except those which
involved penalties of death or transportation. In the nineteenth century
horsestealing came into this category.
[Top]
Petty offences could be tried in the
manorial courts where these still existed, in the mayor's and sheriff's courts
in the cities, and before magistrates. There were several kinds of minor courts
and it was laid down in each case what kind of offence it could try.
The most ancient courts were the
manor courts. They were presided over by a seneschal who was often a solicitor,
and were held before a jury of at least twelve freemen of the manor. The jury
of the manor originally had administrative functions as well as judicial, but
these functions had largely been taken over by the counties in Ireland and by
the parishes in England. Where a manor was a Liberty powers
of civil administration survived into the nineteenth century. Their
authority was derived from the ancient Lord of the Manor. (In feudal times the
estate in land was called a manor, and the owner of the manor had various
powers of jurisdiction given to him by right of ownership.) The lord could have
been a corporate body like a monastery or the chapter of a cathedral.
If the manor court was a court baron
it could deal with affairs on the estate. If it were a court leet it could deal
with affairs of the hundred or barony. If it were a court of frankpledge it
could deal with the affairs of a tithing or ecclesiastical district. The manor
of Kilmainham, of which Lord Cloncurry was Lord, had all three. In 1767 Sir
Edward Newenham summoned 300 of his tenants to a court leet, empanelled a jury
of 23 men, and explained the Whiteboy Act. In Dublin, the Lord Mayor's court,
and the Sheriffs' court were properly speaking manorial courts, with the Lord
Mayor or sheriff acting as a Lord of the Manor. The powers of each court
depended on its charter. Some manorial courts had criminal as well as civil
jurisdiction. Some were restricted to dealing with sums under
forty shillings, while others could deal with sums up to one hundred pounds.
Some manors had powers over shipwrecks or escheated goods of felons, fugitives,
and outlaws.
Manorial courts were usually held in
a large room in an inn. As in some cases no legal qualifications were required
of the seneschal, and the sessions were held in public houses their decisions
were less and less respected. The Government in the nineteenth century made
various attempts to reform them, as they were clearly needed to deal with minor
offences such as goods not paid for. The jurisdiction of many of these courts
was brought to an end in 1828 when the Exchequer Court refused to recognise
their jurisdictions on the grounds that the extents of those jurisdictions were
no longer known with certainty.
Around Dublin, just outside the
jurisdiction of the Lord Mayor, were several manors or 'Liberties' with their
own manorial courts with quite extensive powers. The Liberty of St Thomas and
Donore, called the Earl of Meath's Liberty, retained its old court and also
some administrative functions. The Grand Jury of the Liberty was the market
jury, could appoint constables, and remove nuisances like dangerous buildings.
Lord Cloncurry, an active magistrate, was concerned about the uneven
availability of justice in the minor courts, and at first strove to get the
manorial courts revived and reformed. Later he concentrated on getting the
magistracy reformed and petty sessions established. [Top]
The term magistrate in England and
Ireland was a synonym for a Justice of the Peace. The office in Ireland, unlike
in England, was almost entirely a judicial one, the administration of the
county being in the hands of the Grand Jury. The original duty of magistrates
seems to have been the administering of oaths. Magistrates were empowered to
commit an accused person to trial before a judge and jury if they were
satisfied that there was a prima facie case against him. In Ireland this was
done by accepting sworn testimony or affidavits without question. They took
bail from both parties, one to appear to prosecute (even in criminal matters),
and the other to appear to defend himself. They had summary jurisdiction with
regard to minor offences, and had powers to grant licences. If they were
justices for the county they sat, along with the Assistant Barrister, at
Quarter Sessions. They only could administer oaths legally. As Justices of the
Peace they were especially bound to assist the mayor or sheriff in times of
civil disturbance, and the army, when aiding the civil power had to act under
their direction. If a sheriff or magistrate read the Riot Act the army was
empowered to fire on the mob. They were entitled to fees for taking affidavits
and recognisances but their clerks were not. A recognisance was a deposit given
by the accuser who swore the affidavit to ensure that he would be present at
the assizes to prosecute. Bail was the deposit paid by a defendant to ensure
that he would appear.
The County Governor was supposed to
enquire and report to the Lord Chancellor who were
suitably qualified persons in the county with an independent income from land
of at least £200 for appointment as magistrates. At the beginning of the
century the system of appointing was haphazard. Army officers temporarily
stationed in the county, public officials, likewise, and clergymen, could be
also appointed. But nobody enquired if they were still in the county, if they
ever held a court, or were still in possession of
their mental faculties. A magistrate held his summary court in his own house,
and could expel the public if he wished. By an Act of 1805 he could deal with
cases up to £10 in value. Lord Cloncurry noted that a poor man might walk half
the length of the county to find a magistrate willing to listen to his case.
After 1800 the Government began to
consider the reform of the magistracy. It resisted calls for a wholesale
purging of the magistracy, feeling that the removal of old, incapable, and
inactive magistrates was too harsh. It preferred to extend the system of police
magistrates which was being tried in Dublin. In the counties these were called
stipendiary magistrates or resident magistrates. Eventually about two were
appointed to each county. Attention in the past has been focussed on the
weaknesses of the system of magistrates in counties where resident gentlemen
were few. These complaints were not necessarily true for example in Ulster.
The magistrates themselves reformed
their courts of summary jurisdiction without awaiting legislation by the
Government. Lord Cloncurry was a great advocate of petty sessions where two or
three magistrates joined to hold their courts in common. These joint sessions
had no more authority than separate sessions, but the fact that magistrates sat
together contributed to upholding the dignity of the law. No legal training was
provided for magistrates, whether county gentlemen or stipendiary magistrates.
They were expected to purchase copies of privately produced handbooks for
magistrates. [Top]
(viii) Personnel of the Courts
The legal profession was divided
into solicitors or attorneys and barristers. The former dealt with all aspects
of the law, but could not plead in the higher courts; the latter were
restricted to advocacy in such courts. Solicitors originally dealt with matters
in equity courts and attorneys in Common Law courts but by the nineteenth
century solicitor was the preferred term for both in the British Isles while
attorney was preferred in America, both dealing with Equity and Common Law
cases.
Solicitors received their training
by being apprenticed or 'articled' to a practising solicitor. In 1791 a
Solicitor's Society was established in Dublin (Thom's Directory 1844). In 1841
the Society of Attorneys and Solicitors, the present Law Society, was formed as
a regulatory body for the profession of solicitors, and also a Law Institute to
improve legal training.
Solicitors did routine legal work
like drawing up wills, or giving legal advice especially with regard to conveyancing of property. They made out writs for the
signature of a magistrate. They could be employed to collect rents. They also
prepared cases for the barristers to plead in the superior courts. The
Government employed a number of solicitors to prepare its own business in the
courts. Before the assizes the Crown Solicitor had to collect copies of the
various affidavits sworn before the magistrates and send them to Dublin for
perusal by the Attorney General.
The training of barristers-at-law or
counsellors was very sketchy. (Counsel was a group of barristers.) In theory
aspirants to the bar were apprenticed to practising barristers attached to the
King's Inn in Dublin and the Inns of Court in London. The amount of instruction
they received depended on the barrister concerned. They could accompany the
barrister into court and could read the authorities he pointed out to them. The
only actual requirement was to attend one of the Inns of Court for some terms
and eat the prescribed number of meals.
There was only one Inn of Court in
Ireland, called The King's Inn. Unlike in London barristers had no chambers in
this inn but conducted all their business in the library attached to the Four
Courts. The King's Inn was managed by a group of barristers called the Benchers
of the King's Inn, and these formed the regulatory body of the profession.
Lectures in law had long ceased to be given at the Inn and students were merely
required to 'keep terms' i.e. to attend at the prescribed number of dinners. By
a statute of Henry VIII Irish students had to keep some terms at the Inns of
Court in London where a similar regime prevailed. The advantage for the
diligent student was that he could attend the courts and listen to the ablest
advocates of the day. When a student had completed the required terms he was
'called to the bar' by the Benchers without examination, and so was authorised
to plead in the superior courts. Whether he studied or became a successful
barrister was left to himself.
A barrister, or counsellor, might
get very few briefs from solicitors and so be unable to maintain himself at the bar. He might then turn to politics or to the
press. Conversely, many attached to newspapers liked to keep terms so as to be
able to call themselves barristers. As judges were drawn only from the ranks of
the barristers an ambitious young man had to choose to become a barrister even
if it meant considerable penury until he had made a name in the courts.
When a barrister had attained a
certain eminence in the courts he could be invited by the Lord Chancellor to
become a King's Counsel (KC) and plead on behalf of the crown. These were
allowed to wear a gown of silk instead of stuff, and their cases had precedence
over those of other barristers. They could be permitted to appear against the
crown. Some of the King's Counsel could be advanced to the rank of
serjeants-at-law, from which rank judges were drawn. In court serjeants were
addressed as 'brother' by the presiding judge. The appointment to judgeships
and serjeantcies were political rewards, but acceptance of the office signalled
retirement from politics. (The offices of Attorney General and Solicitor
General were described under Government.)
The roles of the Solicitor General,
the judges, and the barristers are well illustrated in the trial of the
'Doneraile Conspirators' (the Irish equivalent of the 'Tolpuddle Martyrs') in
1830.
Information had been sworn before
certain magistrates in Doneraile in county Cork that there was a secret
conspiracy to murder in the locality. O’Connell seems to have personally
believed that there was such a conspiracy but the Irish Government (Tory) in
Dublin was sceptical as they always were regarding stories of
conspiracies. However, the affidavits
had been sworn so a Special Commission to try the case was issued out of the
usual time for the assizes and the Solicitor General was sent to Cork to
prosecute. Knowing the lax habits of the county gentlemen the judges and the
Crown Solicitors examined the various affidavits, and found some discrepancies.
O’Connell was on holiday and did not bother to attend, so the court allowed the
defendants to choose any other barrister present, and the court would pay his
fees. The Grand Jury found true bills, and the trials came on, with the
defendants being tried in batches. O’Connell suddenly, for unknown reasons,
decided to attend and rushed from Kerry. He entered the court without having
read the affidavits and the judge helpfully indicated to him the discrepancies
in the evidence he had himself noted. Though these were minor they were
sufficient for one juryman to hold out for acquittal. The circumstances were
fully explained in the House of Commons by the Solicitor General, John Doherty.
(Evening Packet 22 May 1830) What was
notable was the willingness of the Solicitor General and the judge to allow
every possible advantage and assistance to the defendants. Yet by the time of
Doherty's death in 1850 the episode had been twisted into an attempt by the
Government to judicially murder Catholics by means of perjured witnesses.
A judgeship represented the peak of
a legal career, but the appointment was normally as a reward for political
services. The judges were worthy and reasonably capable, but not noted for
their legal learning. (It would be foolish to take O’Connell's comments on
political opponents at face value.) They were representative of Irish
barristers in general where forensic skill was more highly regarded, and when a pair of duelling pistols were considered more important
than books on the law. Whatever their political opinions the judges in their
charges to trial juries confined themselves to stating the points of law as
they understood them. Even in their more wide-ranging charges to the Grand
Juries they normally avoided politics.
[Top]
(ix)
Procedures of the Courts
Proceedings in the court began with
the selection of a Grand Jury by the sheriff. The presiding judge then charged
the jury on their administrative and judicial duties. The Grand Jury cursorily
examined the affidavits, usually not taking more than a minute in each case
before finding a true bill. Occasionally in Dublin the Grand Jury actually
examined the affidavits.
The cases were brought forward in
the order of the precedence of the barristers, and
petty or trial juries were selected to try each case. By an Act of the 5th
George III copies of the indictment were furnished to the accused, and counsel
was assigned to him if he could not afford to engage them himself. The
defendants could be tried singly or in batches, and the largest liberty was
allowed to both sides to challenge and set aside prospective jurors. There is
no evidence that the crown lawyers challenged more frequently than anyone
else. As most leading barristers had
several cases at an assize both on the civil and criminal side informal
arrangements were made to allow them to attend each case. O’Connell, for
example, would inform the judge when he was liable to finish a case in another
court, so that the judge, with O’Connell's junior barrister present, could
commence the preliminaries
The first step in a trial was for
the counsel for the defence to request leave to 'traverse in prox', i.e. to
have the case put off until the next term. This allowed the barristers
time to read up on the points of law involved. Because of this practice the
accused were often referred to as traversers. When the case eventually came to
trial the witnesses were examined under oath by the counsel for the
prosecution, and then cross-examined by the counsel for the defence. The judge
then summed up and stated the law on the point for the benefit of the jury. In
this he depended heavily on the legal cases made by the rival barristers who
'reminded' the judge of various precedents or authorities. The judge might make
a mistake but was not held responsible for that. If one were wealthy enough one
could keep on appealing until the House of Lords finally heard the case.
Litigation was as expensive then as at any other time.
There is little reason to believe
that juries frequently returned perverse verdicts, i.e. verdicts contrary to
the evidence presented to them in court. Luby quotes an opinion of O’Connell
that he did not think that one guilty person in a hundred got off because the
jury disagreed. Nevertheless, the Morning
Chronicle of London in 1829 reported a widespread belief that Catholic
juries would not convict Catholics and Protestant juries would not convict
Protestants, and considered that this belief derived from a time when no
tribesman would find a fellow-tribesman guilty. One of the chief reasons for
peremptory challenges was to exclude from a particular trial those under a
tribal or family obligation not to convict.
Evidence is lacking on the extent of
perjury among the witnesses. It may have been fairly extensive both on the part
of the prosecution (i.e. the private prosecutors) and defence, and in both
civil and criminal cases. There is abundant anecdotal evidence about witness
trying to avoid swearing on the Bible by kissing their thumb placed on the text
instead. In any case there is no evidence that it characterised one party more
than another. (Catholic nationalists believed that the crown deliberately
employed false witnesses. Not only is there no evidence for this but it is
against all we know of the Government and the legal profession.)
In Nisi prius trials, the civil cases, in rural areas a knowledge of the jury was more important than knowledge of
the law or actual facts. It was here that O’Connell shone, and where he made
his enormous reputation in the south of Ireland. (He rarely pleaded outside the
Munster circuit.) The great object was to convince the jury that his client's
case was more plausible than that of his opponent. To understand O’Connell's
fame one should envision a case such as that of a farmer when drunk (or
alternatively only half-drunk) offering to add a calf (or alternatively a
particular calf) to his daughter's dowry, the which
calf (or particular calf) having in the meantime died, and both sides perjuring
themselves. Needless to say such cases led to mirth, a fact which O’Connell was
famed for exploiting.
The barristers did not attend every
court in Ireland though they were free to do so. They normally belonged to the
barristers' club or bar corresponding to each circuit. When they came to the
assize town they occupied all the rooms in the inns and dined together. The
presiding judge by custom invited the bar to dinner with him on one night.
Proceedings on circuit were less formal than in Dublin and the barristers did
not wear wigs. Formal legal dress was absolutely required in the Dublin Courts
from the end of the eighteenth century. The personnel in the courts was entirely male.